Rule of law is different from obedience to laws. This means that what is legal is not necessarily moral to be obeyed. It is however the nature of laws to expect to be observed or obeyed but there are requirements before they could become as such. These laws need to be fair and just so that they will deserve uniform application regardless of gender, age, race, ethnicity, religion, or political beliefs. They must attain universality as far as human rights are concerned and that must have a moral and ethical basis.
At one extreme, a dictator may use his power to impose obedience but given the basic human rights of freedom, said dictator could not stay in office if the laws being made and implemented will not attain general acceptability because they are not just or not fair or they are simply arbitrary and capricious. This could be illustrated in the case of Saddam who deserves to be assassinated despite the seeming universality of murder as part of criminal law in the view of Vankin.
Vaknin is arguing in particular about the unfair criminalization of the use of drugs. He argues that laws penalizing illegal use of drugs should be decriminalized because the government has less right over the person of the body and the person owning the same. It is his position that as long as the drug user does not affect others, the state does not have the right to intervene in the right of the individual.
With the government having criminalized drug use, the author is even asking whether scientific research supports the common myths and ethos regarding drugs and their abuse. If not so supported there is the basis to the author’s inference that scientific research is being influenced by the current anti-drugs crusade and hype.
Vaknin is understandable in not questioning that murder should be a crime because that is killing another person, citing Aristotle, the Greek philosopher but not so with suicide because there is no law punishing the same. The principle that may be clear is that a person has the perfect to do anything about himself or herself but not those that will affect others or society.
A national law could err in the eyes of international law. The evidence that national criminal law need not be moral is the case of genocide or ethnic cleansing in the name of national law but such is no longer permitted under international law.
As a further argument on how could national law err on other fronts, the author points the increasing abuse of government in criminalizing previous civil torts which in effect may violate the civil right of individuals. He cites the fact that drug use was allowed in England about a half-century ago but is now criminalized.
What the author feared as a result of the criminalization of previous civil torts is the confusion created in the minds of the citizens apart from the violation of privacy rights. Thus, England and some of its former colonies like Pakistan, Australia, and Canada have encountered various conflicts in their laws as a result of the criminalization of what was previously within in private sphere.
Since the ethical nature of the law must be considered as well to evaluate the national criminal law’s acceptability, the author argues that the ethical nature of a number of crimes will have to consider the timing, circumstances, and cultural context. He thus argues by saying that although murder is indeed universal, he feels that assassinating Saddam Hussein then of Iraq may be justified on the ground of the perhaps putting to the stop to atrocities and violation of human rights than by the Iraqi leader who was a dictator. A dictator, who does not respect the freedoms of people, appears to deserve no justification to live as far as the author is concerned. His feelings may be more understandable when it comes to the violation of the right to privacy because it happened that the legislative branch of the US government has made it criminal to use drugs.
In further explaining the relativity of what is moral, the author is stating that killing the embryo may be a crime as in the case where the stem cell research issue is involved in some countries, yet abortion law, which kills the fetus, is legal.
The author may be pointing also a neglected part of society where crime may be necessarily promoted by its proliferation over time instead of being prevented. He cites that crime is a growing industry because of the need of many criminal law professionals in the supposed to be an effort to prevent crimes but the author is also telling about the increasing complexities of crimes. The need for more professionals like police officers, psychologists, publishers, prosecutors, criminologists, social workers, sociologists, weapon manufacturers, crime laboratory technicians, and private detection has been experienced by society since the time that more civil laws were criminalized. What is ironic in the view of the author on the seeming perpetuation of the punishment and retribution by these professionals that create recidivism instead of the better goal or declared goal of rehabilitating these criminals and reintegrating them into society.
The author is arguing for the decriminalization of some laws because they are considered as abuse of power of the state in the sense that they transgress what is ethical, moral, and universal in terms of violating the right of the people to privacy and leisure. In a resolution adopted by the United Nations General Assembly, under article 12, there is the clear provision that “No one shall be subjected to arbitrary interference with his privacy…”. All governments in the world including that of the US are bound by this declaration. This seems to be the line of reasoning of Vaknin. To him, people should be given the freedom to manage themselves as long as they do not affect other people. The author is particularly referring to those convicted of illegal drug users who may have the right to manage themselves as long as they are not affecting other people.
There could be ways to make laws effective. One is having it declared void by the US Supreme Court as violative of Constitution particularly under the due process clause. Such was what happened in the case of Roe vs. Wade when the Court declared that Texas abortion laws violate due process. In this sense, the US Constitution may be used as a framework to declare a law unconstitutional. In the article “Exploring Constitutional Law: The Right of Privacy” Linder talked about whether the US Constitution protects the right to privacy. The author argues that the “U.S. Constitution contains no express right to privacy” he mentions the Bill of Rights as the source of those rights particularly under the 4th Amendment where the privacy of a person against unreasonable searchers is found.
There is the basis to conclude that the rule of law is not the same as obedience to the law. Law promulgated by the government shall only be obeyed if they are fair, just, ethical, moral, and in accord with the universal laws. It can be further concluded that if criminalizing drug use is one particular example that may prove such law is an unfair and unjust intervention of the state in the lives of its private citizens, then it is the best example of law not to be obeyed. However since the law is presumed constitutional until declared otherwise by the US Supreme Court, the arguments of the author in this paper may be best used in questioning the constitutionality of the law penalizing drug use. Absent any declaration of the law by the Supreme Court, any existing law is presumed to be moral, ethical, and universal.
Works Cited
Vaknin, Sam. “The Rule of Law vs. Obedience to the Law”. Web.
“The Universal Declaration of Human Rights” United Nations (n.d.). Web.
Linder, Doug. “Exploring Constitutional Law: The Right of Privacy”. (n.d.). Web.
“ROE v. WADE, Decided 1973” Touro Law Center, (n.d.) Web.